Citation Nr: 0020093
Decision Date: 07/31/00 Archive Date: 08/02/00
DOCKET NO. 95-32 254 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from February to May 1979
and from July 1991 to January 1992.
This case originally came before the Board of Veterans'
Appeals (Board) on appeal from a January 1993 rating decision
of the RO.
In April 2000, the Board remanded the case to the RO in order
to clarify whether the veteran wanted to appear for a
hearing.
The veteran failed to appear for a hearing in Washington,
D.C. before a Member of the Board scheduled in July 2000, at
his request.
FINDING OF FACT
The veteran's claim of service connection for PTSD is
plausible and capable of substantiation.
CONCLUSION OF LAW
The veteran has submitted evidence of a well-grounded claim
of service connection for PTSD. 38 U.S.C.A. §§ 1110,
5107(a), 7104 (West 1991 & Supp. 2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Statutory law as enacted by the Congress charges a claimant
for VA benefits with the initial burden of presenting
evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a)
(West 1991 & Supp. 1999). This threshold requirement is
critical since the duty to assist a veteran with the
development of facts does not arise until the veteran has
presented evidence of a well-grounded claim. Epps v. Gober,
126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App.
498, 505 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
A well-grounded claim has been defined by the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999)
(Court) as "a plausible claim, one which is meritorious on
its own or capable of substantiation." Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
Where the determinative issue involves a question of medical
causation or diagnosis, medical evidence to the effect the
claim is "plausible" or "possible" is required. Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). A claimant cannot
meet this burden merely by presenting lay testimony because
lay persons are not competent to offer such medical opinions.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently,
lay assertions concerning medical diagnosis or causation
cannot constitute evidence to render a claim well grounded
under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93
(1993).
According to the Court in Caluza v. Brown, 7 Vet. App. 498,
506 (1995), a well-grounded claim of service connection
requires competent evidence of the following: i) current
disability (through medical diagnosis); ii) incurrence or
aggravation of a disease or injury in service (through lay or
medical evidence) and; iii) a nexus between the inservice
injury or disease and the current disability (through medical
evidence). Moreover, the truthfulness of evidence offered by
the veteran and his representative is presumed in determining
whether a claim is well grounded. King v. Brown, 5 Vet. App.
19, 21 (1993).
On VA examination in March 1993, the veteran reported that
during active duty in Saudi Arabia during the Persian Gulf
War, he was under fire by incoming mortar, artillery and tank
rounds. He reported that a friend had been killed in a jeep
accident. The examiner noted that the veteran was stationed
in a forward post and receiving incoming fire. It was noted
that the primary traumatic stressor was seeing his friend
decapitated and that the development of PTSD was related to
this incident. The diagnosis included that of PTSD.
The most recent VA examination was conducted in November
1998. The diagnosis was that of chronic severe PTSD, noting
the stressor event regarding the death of a close friend.
As noted hereinabove, in determining whether an application
for benefits is well grounded, the truthfulness of evidence
offered by the veteran and his representative is presumed.
King at 21. The evidence currently before the Board includes
medical evidence suggesting that the veteran currently
suffers from PTSD, the veteran's statements of having an in-
service stressor event which is presumed credible and that
medical evidence linking the PTSD to certain stressful events
in service.
Hence, the Board finds that the veteran's claim meets the
requirements set forth by the Court in Caluza. Accordingly,
the veteran has submitted a well-grounded claim of service
connection for PTSD.
ORDER
As the veteran has submitted a well-grounded claim of service
connection for PTSD, the appeal to this extent is allowed,
subject to further action as discussed hereinbelow.
REMAND
As discussed, the veteran asserts that he suffers from PTSD
due to incidents in service during the Persian Gulf War. He
has reported that he served in the 304 Light Equipment Group
as an upload leader.
In February 1993, the veteran reported that he had
experienced combat exposure in the following forms: being on
a ship or aircraft that passed through hostile waters or air
space; being stationed at a forward observation post;
receiving hostile incoming fire from small arms, artillery,
rockets, mortar or bombs; encountering mines or booby traps
while on patrol; engaging in a firefight with the enemy; and
witnessing combat casualties. He has also reported that he
witnessed the death of a close friend, who was decapitated in
a jeep accident in September 1991. He identified that person
as being Lee Ballard.
In September 1998, the US Armed Services Center for Research
of Unit Records (USASCRUR) verified that the veteran did
serve in the Persian Gulf and that a PFC Bowers, who was
assigned to the 144th Heavy Equipment Maintenance Company,
died from a massive brain hemorrhage sustained in a vehicle
accident on September 4, 1991.
The Board observes that the facts verified the USASCRUR
regarding the death of PFC Bowers are not entirely consistent
with the stressor statement of the veteran regarding that
incident. The veteran recalled the individual's name as Lee
Ballard and reported that he was decapitated. Although the
death of an individual was corroborated, it was not clearly
indicated whether the veteran was a witness to that event.
As such, the Board finds that additional development of the
evidence is warranted in this case.
The Board notes that, since the veteran has been found to
have submitted a well-grounded claim, VA has a duty to assist
the veteran in the development of facts pertaining to his
claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999).
The RO should again contact the veteran and request that he
provide specific information regarding the claimed service
stressors. The Board emphasizes, for the veteran's benefit,
that the duty to assist is not a one-way street. If the
veteran wishes help, he cannot passively wait for it in those
circumstances where his own actions are essential in
obtaining the putative evidence. Wood v. Derwinski, 1 Vet.
App. 190 (1991). The Court has held that requiring a
claimant to provide this information to VA does not represent
an impossible or onerous task. Id. at 193. Thereafter, the
RO should attempt to verify all contended stressors,
particularly the death of the friend, through all appropriate
sources.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
therefore REMANDED to the RO for the following development:
1. The RO should take appropriate steps
to ask the veteran to provide
comprehensive information concerning the
inservice stressor events he feels
support his claim of service connection
for PTSD. He should be asked to provide
specific details of the claimed stressful
events during service, such as dates,
places, detailed descriptions of the
events, his service units, duty
assignments and the names and other
identifying information concerning any
individuals involved in the events. The
RO should inform the veteran that he may
specifically submit lay/comrade
statements which support his report of
the alleged stressors. He should be told
that the information is necessary to
obtain supportive evidence of the
stressful events.
2. Then, based on all of the stressor
information provided, the RO should
prepare a summary of all claimed
stressors and then undertake appropriate
steps in order to obtain verification of
the events. This should include
forwarding the information to USASCRUR,
7798 Cissna Road, Suite 101, Springfield,
Virginia 22150-3197. That agency should
be requested to provide any information
which might corroborate the veteran's
alleged stressors, including all
pertinent reports pertaining to the
veteran's units. The response from
USASCRUR should be associated with the
claims folder. In addition, the RO
should seek to corroborate the veteran's
alleged stressors through any other
appropriate service department.
3. The RO then should afford the veteran
a VA examination in order to determine
the nature and likely etiology of the
claimed psychiatric disorder. The claims
folder should be made available for
review. Based on his/her review of the
case, the examiner should determine
whether the veteran is suffering from
PTSD.
4. Upon completion of the development
requested hereinabove, the RO should
review the veteran's claim. If any
action taken remains adverse to the
veteran, he and his representative should
be furnished with a supplemental
statement of the case and should be given
an opportunity to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if indicated.
The veteran need take no action until he is further informed,
but he may furnish additional evidence and argument while the
case is in remand status. Kutscherousky v. West, 12 Vet.
App. 369 (1999). No inference should be drawn regarding the
final disposition of the claim as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals